University of Baltimore Law Review Volume 23 Article 6 Issue 1 Fall 1993 1993 Comments: The eP remptory Challenge at the Federal Level and in Maryland: Its Uncertain Future after Georgia v. McCollum Jeffrey S. Jubera University of Baltimore School of Law Follow this and additional works at: http://scholarworks.law.ubalt.edu/ublr Part of the Law Commons Recommended Citation Jubera, Jeffrey S. (1993) "Comments: The eP remptory Challenge at the Federal Level and in Maryland: Its Uncertain Future after Georgia v. McCollum," University of Baltimore Law Review: Vol. 23: Iss. 1, Article 6. Available at: http://scholarworks.law.ubalt.edu/ublr/vol23/iss1/6 This Article is brought to you for free and open access by ScholarWorks@University of Baltimore School of Law. It has been accepted for inclusion in University of Baltimore Law Review by an authorized administrator of ScholarWorks@University of Baltimore School of Law. For more information, please contact [email protected]. THE PEREMPTORY CHALLENGE AT THE FEDERAL LEVEL AND IN MARYLAND: ITS UNCERTAIN FUTURE AFTER GEORGIA v. McCOLLUM I. INTRODUCTION One of the primary purposes of the Supreme Court is to interpret the Constitution and recognize the rights guaranteed therein. The establishment of personal liberties has usually depended on the com- . position of the Court and the current political sentiment. One aspect that has not varied, however, is the Court's reluctance to provide detailed, or at times even general, guidelines for the administration of these newly founded rights. The Court has viewed the lower court system as the proper venue for such detailed tasks. One need only examine the problematic impact of the phrase "with all deliberate speed"l to understand that in fashioning rights the Court tends to bypass the dramatic repercussions such guarantees may have on the administration of justice.2 In its ministrations with the peremptory challenge, the Court has again neglected to examine the overall impact likely to be engendered. The peremptory challenge has been around since the very early days of English common law. 3 It was adopted by the American 1. Brown v. Board of Educ., 349 u.s. 294, 301 (1955). 2. The application of Brown has generated a considerable number of commen­ taries. For an overview of the problems encountered, see generally Philip T.K. Daniel, A Comprehensive Analysis oj Educational Choice: Can the Polemic oj Legal Problems be Overcome?, 43 DEPAUL L. REv. I, 39-47 (1993); James B. Egle, Comment, Constitutional Implications oj School Choice, 1992 WIS. L. REV. 459, 487-95; Robert B. McKay, "With All Deliberate Speed": A Study oj School Desegregation, 31 N.Y.U. L. REV. 991 (1956); Mark Tushnet, What Really Happened in Brown v. Board oj Education, 91 COLUM. L. REV. 1867, 1928-29 (1991). 3. The earliest usage of the peremptory challenge gave the Crown an unlimited ability to select a jury of its choice. See generally JON M. VAN DYKE, JURY SELECTION PROCEDURES: OUR UNCERTAIN COMMITMENT TO REPRESENTATIVE PANELS 147 (1971). This power was taken away in 1305 when Parliament passed a statute eliminating the Crown's ability to issue a peremptory challenge, creating in its place challenges for "Cause shown." 33 Edw. I, Stat. 4 (1305). This limitation did not last long, as judges construed the statute to allow the Crown the power to direct any juror to "stand aside." See, e.g., Mansell v. Regina, 120 Eng. Rep. 20, 27 (1857) ("no intention of taking away all power of peremptory challenge from the Crown, while that power ... was left to the prisoner"); Regina v. Frost, 173 Eng. Rep. 711, 776 (1839) ("not a correct inference from the words of the statute that the Crown is deprived of its right 226 Baltimore Law Review [Vol. 23 system, being recognized by Congress as early as 1780 as a device to be used by defendants in trials of treason and other capital crimes.4 Until the mid-1960s, little was done to the peremptory challenge, except occasional measures that regulated the number of challenges either side could issue.5' In 1965, however, there began a line of cases that radically affected the peremptory challenge and may ultimately lead to its abandonment. In Swain v. Alabama,6 the United States Supreme Court began this progression by recognizing that a criminal defendant's right to equal protection was violated when potential jurors were excluded from a jury on the basis of race.' In 1986, the Court's decision in Batson v. Kentucky redefined the burden of proof for such a claim, making it possible for a criminal defendant to prevail against a prosecutor's use of peremptory challenges to strike jurors on the basis of race. 9 The cases following Batson shifted the equal protection focus, however, from the defendant to the affected juror. With this shift, the decisions in Powers v. Ohio lO and Edmonson v. Leesville Concrete Co. II led inextricably to the Court's recent ruling in Georgia v. McCol/um,12 in which it held that a criminal defendant may not use peremptory challenges on the basis of race. It is this change in ·focus that is the basis for this Comment. The Court has created a broad substantive right in an area where to challenges"); VAN DYKE, supra, at 148. As applied to defendants, the peremptory challenge was always allowed for felonies at common law. See Swain v. Alabama, 380 U.S. 202, 212n.9 (1965); 4 BLACKSTONE COMMENTARIES 353 (15th ed. 1809) ("peremptory chal­ lenge: a provision full of that tenderness and humanity to prisoners"). However, its application in civil proceedings at common law was questionable. See Kabatchnick v. Hanover-Elm Bldg. Corp., 119 N.E.2d 169, 172 (Mass. 1954) ("right to make a peremptory challenge did not exist at common law but is of statutory origin"). 4. Acts of Apr. 30, 1790, ch. 9, § 30, 1 Stat. 119. The defendant was entitled to 35 peremptory challenges in trials for treason and 20 peremptory challenges in other felonies punishable by death. See Swain, 380 U.S. at 214. The state's use of peremptory challenges was uncertain in the development of early American law. The general practice, it seems, was to allow the state peremptory challenges by adopting the common law practice of "standing aside." See VAN DYKE, supra note 3, at 149. In 1865, Congress statutorily granted the govern­ ment the power to use peremptory challenges. See Swain, 380 U.S. at 215 (citing 13 Stat. 500 (1865». 5. See VAN DYKE, supra note 3, at 150. 6. 380 U.S. 202 (1965). 7. Id. at 223-24. 8. 476 U.S. 79 (1986). 9. See infra notes 49-52 and accompanying text. 10. 499 U.S. 400 (1991). 11. 500 U.S. 614 (1991). 12. 112 S. Ct. 2348 (1992). 1993] The Peremptory Challenge 227 discrimination was traditionally allowed. With every peremptory chal­ lenge comes some discriminatory intent. The party using the strike does so believing that the potential juror will be unfavorable to that party's cause. The Court has now stated that certain discriminatory motivations may not be the basis for those strikes.13 According to the Court, a party issuing a discriminatory strike violates the equal protection right of the juror .14 This decision presents a variety of questions. How can a criminal defendant be a state actor? What specific motivations are prohibited? What particular groups are pro­ tected? How will the courts deal with these new developments? Will their efforts amount to anything? Part II of this Comment outlines Strauder v. West Virginia lS and Batson v. Kentucky, 16 the federal cases that developed the equal protection right for the criminal defendant. Part III discusses Powers v. Ohio l7 through Georgia v. McCollum,ls the cases concerning the shift in equal protection guarantees from the defendant to the juror. Analysis will cover both the protected party and the differing actors involved in using the peremptory challenge. Part IV reviews the developments in Maryland case law. Focus will be directed to two aspects inherent in Maryland law that have limited the application of the equal protection right. Finally, Part V discusses the realities involved in the current situation. Specifically, the analysis will center on three topics: (1) the McCollum Court's labeling of the criminal defendant as a state actor; (2) which groups have been, or should be protected; and (3) whether the voir dire system used in Maryland actually encourages illegal strikes. II. EQUAL PROTECTION FOR THE DEFENDANT: STRA UDER AND BATSON Although not decided in the context of peremptory challenges, Strauder v. West Virginia l9 began the analysis of discrimination in jury selection. In 1880, a black criminal defendant challenged a state law that prohibited blacks from sitting on juries.20 The United States Supreme Court ruled that the State denied the black defendant equal protection when it tried him before a jury from which the State had 13. E.g., Batson v. Kentucky, 476 U.S. 79 (1986) (barring racial discrimination in the prosecutor's use of the peremptory challenge). 14, [d. at 84. 15. 100 U.S. 303 (1880). 16. 476 U.S. 79 (1986). 17. 499 U.S. 400 (1991). 18. 112 S. Ct. 2348 (1992). 19. 100 U.S. 303 (1880). 20. [d. at 305. 228 Baltimore Law Review [Vol. 23 purposefully excluded members of his race. 21 Although the Court would not extend its holding to require that the defendant have a "jury composed in whole or in part of persons of his own race, "22 it did require that the jury venire23 be selected according to nondis­ criminatory criteria.24 In deciding Strauder, the Court indicated its belief that the composition of the jury would affect the outcome of the case: "It is well known that prejudices often exist against particular classes in the community, which sway the judgment of jurors, and which, .